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[2017] ZAWCHC 168
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Absa Bank Limited v Metropolitan Construction & Site Managing Consultants CC and Another (1143/2017) [2017] ZAWCHC 168 (23 May 2017)
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Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No 1143/2017
ABSA
BANK
LIMITED
Plaintiff
and
METROPOLIS
CONSTRUCTION &
SITE
MANAGING CONSULTANTS
CC
First
Defendant
(Registration
Number 1990/057944/23)
JUNAID
SLAMANG
Second
Defendant
(Identify Number […])
JUDGMENT
DELIVERED ON 23 MAY 2017
KUSEVITSKY
AJ
:
[1]
This
is an opposed application for summary judgment. Plaintiff instituted
action against Defendants by way of simple summons for
payment of the
amount of R609 180.69 together with interest thereon at the rate
of 13.75% per annum, calculated and capitalized
monthly to date of
payment, being in respect of money lent and advanced by Plaintiff to
the principal debtor at the latter’s
special instance and
request.
[2]
It
is common cause that the parties concluded a banking facility
agreement (“the facility”), which agreement was annexed
to the summons as annexure “A” and that monies were
advanced to the First Defendant in terms of the facility.
The
amount claimed as well as the applicable rate has been established by
means of a certificate of balance reflecting these details
and
annexed to the summons as annexure “B”. On the 18 August
2015, the Second Defendant signed a Deed of suretyship
guaranteeing
the First Defendant’s obligations to the Plaintiff bank. The
Suretyship agreement was similarly annexed to the
summons as annexure
“C”.
[3]
On
the 23 February 2017, the Defendants entered an appearance to defend
and upon the expiry of the dies, the Plaintiff applied for
summary
judgement for hearing on the 28 March 2017. On that day, the
application for summary judgment was postponed to 20 April
2017 in
order for the Defendants to deliver their opposing affidavit by no
later than 17 April 2017. This they failed to do. On
the 20 April
2017, and in the absence of the Defendants’ opposing affidavit,
Plaintiff afforded the Defendants another opportunity
to file its
opposing affidavit and condonation application. The matter was
thereafter postponed to 9 May 2017 and Defendants were
ordered to pay
the wasted costs occasioned by that postponement on an attorney and
client scale.
[4]
The
Defendants eventually filed its opposing affidavit and in it’s
defence, raised only technical defences. They did not disclose
any
defence to the merits. According to Plaintiff, the Defendants did not
dispute the conclusion of the facility, nor that monies
were lent and
advanced in terms of the facility or that First Defendant had
defaulted in its obligations. Neither the suretyship
agreement
binding the Second Defendant was disputed. In its opposing affidavit,
the Defendants state that in terms of the Banking
Facility schedule,
it obliges the Plaintiff to send a written notice to the Defendants
to remedy an event of default within 2 business
days and give further
written demand of the default before exercising its rights pursuant
thereto.
[5]
As
support for this, they rely upon Clause 10 of the agreement.
Clause 10.1.1 of the facility provides that an event of default
will
occur if the borrower fails to make any payment to the bank on the
due date thereof. In terms of clause 10.2 thereof,
if the
Borrower fails to remedy such an event of default (where capable of
remedy) within 2 (two) business days of having been
given notice by
the Bank calling upon the Borrower to do so, or if the event is not
capable of remedy and the Bank gives notice
that such event has
occurred and the Bank is exercising its rights pursuant thereto,
then:
“
10.2.1
all the Borrowers indebtedness to the Bank (actual or contingent)
will be due and payable immediately irrespective of any
terms or
conditions otherwise applicable to such indebtedness…”
and
10.2.2 the Bank will be
entitled to demand that the Borrower immediately pay…”
[6]
According
to the Defendants, Plaintiff’s claim, more specifically
paragraphs 1.2 and 3.1 thereof, lack averments which are
necessary to
sustain a cause of action and are thus excipiable, alternatively that
there are insufficient material facts that would
enable it to plead
thereto, thus rendering the summons and particulars vague and
embarrassing. Defendants relied on the decision
of
Jagger
& Co. Ltd v Mohamed
1956 (2) SA 736
(C) for their contention that they need only base
their opposition on the excipiability of the Plaintiff’s claim
as formulated
and that in any event, as in the defence put forward
there, that no cause of action was disclosed. In that matter the
Plaintiff
had applied for summary judgment and the defendant’s
defence was that he had timeously taken an exception to a declaration
filed and it appeared that there was substance in the exception that
went to the root of the action when the plaintiff, in claiming
payment of the price of the goods which he had sold to defendant,
failed to allege that he had delivered them.
[7]
Defendants
also allege that the failure by Plaintiff to attach any written
notice advising it to remedy an event of default, as
well as its
failure to attach any letter of demand for payment to its pleadings,
is a contractual breach thus rendering the summons
and particulars of
claim vague and embarrassing.
[8]
The
first point to consider is whether paragraphs 1.2 and 3.1 of the
summons lacks averments which are necessary to sustain a cause
of
action. The relevant clauses of the summons which is the subject of
the attack are as follows: Paragraphs 1.2 and 3.1 states
the
following:
“
1.2
The principal debtor is in default of its obligations to the
plaintiff and has failed to remedy the event of default after having
been notified by the plaintiff calling upon the principal debtor to
do so. The plaintiff is now exercising its rights pursuant
thereto
and the principal debtor’s indebtedness to the plaintiff
(actual or contingent) is now owing, due and payable, irrespective
of
any other terms and conditions otherwise applicable to the
indebtedness.”
“
3.1
The default is substantial and the debt is not negligible and long
outstanding and was despite demand, not paid.”
[9]
As
to the aforementioned allegations, the Plaintiff contends that in
paragraph 1.2 of the summons, it makes the following allegations:
“
The
principal debtor is in default of its obligations to the plaintiff
and has failed to remedy the event of default after having
been
notified by the plaintiff calling upon the principal debtor to do so”
[10]
This,
they contend, complies with clause 10.2 of the agreement in that they
firstly allege that a default event had occurred, secondly
that
Defendants have been notified of the default event, and as a
consequence, the acceleration clause as triggered by the default
as
contained in 10.2.1 and 10.2.2 entitles the Plaintiff to demand
repayment of all the borrower’s indebtedness immediately
irrespective of any terms or conditions otherwise applicable to such
indebtedness.
[11]
It
is trite that in summary judgment proceedings, a plaintiff must prove
a clear claim upon pleadings which are correct.
Gulf
Steel (Pty) Ltd v Rack-Rite Bop (Pty) Ltd and Another
1998
(1) SA 679
(O).
[12]
Whether
a pleading is vague and embarrassing on the ground of lack of
particularity depends on whether it complies with the provisions
of
the relevant rules of the Uniform Rules of Court. Prejudice to
a litigant faced with an embarrassing pleading lies ultimately
in an
inability to prepare properly to meet an opponent's case. In
casu
,
the Defendants have not claimed any prejudice.
[13]
As
a point of departure, one first need to ascertain whether the summons
complained of is a simple summons within the meaning of
Rule 17, or
not, and if it is, whether it contains sufficient information to
alert a defendant of its cause of action. Mr
Jonker
for Plaintiff submitted that the summons was a simple summons, or to
be precise, a ‘hybrid’ form of a summons, common
in this
Division. This type of summons contains more details that a simple
summons might, but it is not signed jointly by an attorney
and
advocate, nor does it have particulars of claim annexed to it or any
of the other elements that would render it a combined
summons for
purposes of Rule 18.
[14]
This
question was dealt with in
Standard
Bank of South Africa v Hunkydory
Investments
194 (Pty) Ltd and Others
(No.1)
2010 (1) SA 627
(C) at 630, where a Plaintiff had instituted
action against defendants by way of a simple summons as provided for
in Uniform Rule
of Court 17(1). There the court held that a simple
summons (Form 9) is used for claims for debts or a liquidated demand
and that
Form 9 requires the plaintiff to set out his cause of action
'in concise terms'. Full particularity is not required,
as
long as a general indication of the cause of action is provided.
The statement of the cause of action in a simple summons is in fact
no more than a 'label', an indication of the plaintiff's claim
'in
the most general terms. With regards to exceptions and irregular
procedure, the court stated the following:
“
[8]
That a summary judgment simple summons is capable of being set aside
on exception, or as an improper or irregular step, may
be a good
reason why summary judgment should be refused. It would constitute a
bona fide defence. However, it could not have been
intended that the
initiating simple summons should contain the degree of particularity
which is appropriate in a declaration.
A
court will only grant summary judgment if satisfied that the
necessary elements which go to make up a cause of action have been
verified under oath
.
See also
Dowson
& Dobson Industrial Ltd v Van der Werf and Others
1981 (4) SA 417
(C). (my emphasis)
[15]
It
is trite law that an overly technical approach by the court with
regard to exceptions and irregular procedure should be avoided.
The
court does not look too critically at a pleading.
[16]
As
stated hereinabove, the simple summons intended for use in claims for
a debt or liquidated demand should contain only an indication
of the
plaintiff's claim in the most general terms. All that is required is
that the claim be set out with sufficient particularity
for the court
to decide whether judgment should be granted, and for the defendant
to be made aware of what is being claimed from
him.
[17]
It
is evident that the Plaintiff’s cause of action is based the
agreement whereupon monies were lent and advanced in term
of the
banking facility. The allegation of this is made in the summons
wherein it states that:
“
1.1
The first defendant (‘the principal debtor”) is indebted
to the plaintiff in the amount of R 609 180.69 plus interest
thereon
at 13.75% per annum, calculated and capitalized monthly to date of
payment, being in respect of money lent and advanced
by plaintiff to
the principal debtor at the latter’s special instance and
request on a cheque account with number 4087006122.
Copies of the
Facility letter and Banking Facility Schedule dated 18 August 2015
are annexed hereto marked A1-A2.”
[18]
There
can be no doubt that summary judgment cannot be obtained in respect
of a summons which fails utterly to disclose a cause of
action.
See
L
S Enterprises (Pty) Ltd v Couck
1971
(1) SA 438
(T) at 440F;
Caltex
Oil (SA) Ltd v Crescent Express (Pty) Ltd
1967
(1) SA 466
(D) at 469C.
But, having said that, one must not lose sight of the fact that Rule
32 of the Uniform Rules of Court entitles a plaintiff
who has issued
and served a simple summons, of the kind set out in Form 9, to apply
for summary judgment. Such a summons need only
set out "in
concise terms plaintiff's cause of action" as was pointed out in
Dowson
& Dobson Industrial Ltd v Van der Werf and Others
1981 (4) SA 417.
[19]
In
casu
,
having regard to the Plaintiff’s summons and in particular the
clauses complained of, which should be read in conjunction
with
clause 1.1 of the summons, I can find no merit in the
Defendants’ assertion that clauses 1.2 and 3.1 are vague
and
embarrassing and therefore excipiable.
[20]
The
second issue to consider is whether Plaintiff is obliged to annex the
written notices of breach and letter of demand to its
summons and
that in the absence of same, it renders the summons excipiable and a
bar to obtaining summary judgment as submitted
by the Defendants.
[21]
The
question of attaching supporting documents to a simple summons have
been the topic of discussion in many decisions in this Division
and
elsewhere.
[22]
As
I have mentioned, the technical defence raised by the Defendants is
the Plaintiff’s failure to attach the aforesaid notices
to its
‘pleadings’ which is thus deemed a contractual breach as
well as rendering the summons and particulars of claim
vague and
embarrassing. The question as to whether a simple summons was a
‘pleading’ was dealt with in the full Bench
decision
of
Absa Bank Limited v Janse van Rensburg & Another
2013 (5) SA 173
(WCC):
“
[4]
The question whether or not a simple summons is a pleading was
recently considered by Wallis J (as he then was) in
Icebreakers
No 83 (Pty) Ltd v Medicross Health Care Group (Pty) Ltd.
The
plaintiff, by way of such a summons, claimed payment of three
amounts, namely R283 767 'arising out of arrear rental due
in
respect of leased premises'; R169 435,26 'being the reasonable and
necessary costs of building alterations carried out' on those
premises; and R49 587 'in respect of the costs and repairs to dental
equipment leased to the defendant'. The defendant delivered
a notice
of exception on the grounds that the claims as set out in the summons
lacked averments to sustain a cause of action. In
the course of a
comprehensive judgment, the learned judge referred, inter alia, to
the requirement in form 9 of the first schedule,
that the plaintiff's
cause of action be set out in 'concise terms', and pointed out that
there is a 'plethora of authority'
that all that is required in
setting out the concise terms of a cause of action 'is to give a
general indication of the claim amounting
merely to a label'.
For
this, and a variety of further reasons,
Wallis
J accordingly concluded that a simple summons is not a pleading
,
with
the result that it cannot be attacked by way of an exception.”
(my
emphasis)
[23]
Thus,
based on the aforesaid decision, it is clear that a simple summons is
not a pleading and that the claim by Defendants that
the failure to
attach written notices to its “pleadings” in the opposing
affidavit is misplaced. However that is not
the end of the enquiry.
[24]
The
next step is to consider is whether there is an obligation on the
Plaintiff’s to have annexed the said notices to its
summons.
[25]
Mr
Jonker
submitted that there is no obligation on the Plaintiff to have
annexed the relevant notices to the summons because their cause
of
action is not based on the notices. The present case, he says, is
distinguishable from the full Bench decision in
Janse
van Rensburg
supra
wherein it held that the plaintiff must annex a copy of the written
agreement upon which it relies, to its simple summons. It held
that,
on a proper interpretation of Rule 17(2)(b), read with form 9, it is
necessary to attach a copy of the written agreement
to the summons
where the plaintiff’s cause of action is based on such
agreement.
[26]
In
the
Van
Rensburg
matter, various authorities were cited and I summarise it as follows:
“
[8]
Turning to the need to annex copies of documents to a simple summons,
this question was considered by Berman J and Selikowitz
J in
Volkskas
Bank Ltd v Wilkinson
and
Three Similar Cases
,
where the requirements for a simple summons were succinctly
summarised as follows:
'It
appears to us accordingly that where a plaintiff sues for repayment
of a loan (or an overdraft) all that a simple summons
need
contain is a statement setting out the relief claimed and a succinct
outline of the cause of action, ie that an agreement
of loan (or of
overdraft) was concluded between the parties providing for interest
on the balance outstanding from time to time
at a specified (or
ascertainable) rate and which loan (or overdraft) was repayable on
demand (or on a fixed or ascertainable
date) and which, despite
demand (or the arrival of that date), has not been repaid.
Where
the cause of action is founded on some document, reference thereto
should be made in the summons and a copy should be attached
to the
summons and the original should be handed in at the time when
application for default judgment is made.
'
[Own emphasis.]
“
[11]
More recently, in
Absa
Bank Ltd v Studdard and Another
,
Wepener J in the South Gauteng High Court also considered the
very issue confronting us herein, namely whether, having regard
to
the wording of rule 17(2)(b) read with form 9 or any other
requirement, the written agreement of loan should be attached
to the
summons. He observed that —
'(i)t has been a rule of
practice in this Division that copies of both the written agreement
of loan as well as the bond document
must be attached to a summons,
including a simple summons, and to produce the original documents at
the time when judgment is requested,
whether the matter is brought by
way of summons or application… After referring to
various other authorities, he concluded
as follows:
‘
I
consequently conclude that the cases requiring the attachment of
the written document, where it forms a link in the
chain
of the cause of action or
is
the foundation of the plaintiff's cause of action
,
are correct and should be followed. As is the case in this Division,
the practice in the Western Cape High Court is a salutary
one and I
find no reason why I should not follow what the Full Bench said in
Wilkinson regarding the attachment of
the written
contract where it forms a link in the chain of the cause of action or
the cause of action is found thereon as well
as the allegations,
which are required to be contained in a simple summons.'
[13] Apart from the
judicial authority referred to above, all the foremost authorities in
this country on civil procedure in the
high court appear to support
this line of authority. In Erasmus reference is made to the
Wilkinson
and
Studdard
judgments,
supra
, in support of the following statement:
'Where the cause of
action is founded on some document, reference thereto should be made
in the simple summons and a copy should
be attached to the summons
and the original should be handed in at the time when application for
default judgment is made. If a
copy of the required document is not
attached to the simple summons, the summons would not disclose a
cause of action.”
[27]
Plaintiff
alleges that in the present case, the Plaintiff’s cause of
action is not found upon a letter of demand, but on an
agreement
pursuant to which monies were lent in advance in terms of the banking
facility. This document was annexed to the simple
summons. The
Plaintiff’s claim against Second Defendant is in terms of the
Suretyship agreement. This too was annexed to
the summons. I am
therefore satisfied that the link in the chain of Plaintiff’s
cause of action has been followed. In any
event, Plaintiff’s
cause of action is not based on the letter of demand, nor on the
notice of breach, as these notices are
mere procedural steps which
flow from the agreement. In any event, there is no allegation by
Defendants in their opposing affidavit
that they did not
receive
the said notices, their complaint is that it was not annexed to the
summons.
[28]
The
legal principles governing summary judgment proceedings are
well-established. In
Maharaj
v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 426 A-D, Corbett JA outlined the
principles and what is required from a defendant in order to
successfully oppose a
claim for summary judgment as follows:
“
...[One]
of the ways in which a defendant may successfully oppose a claim for
summary judgment is by satisfying the Court by affidavit
that he has
a bona fide defence to the claim. Where the defence is based upon
facts, in the sense that material facts alleged by
the plaintiff in
his summons, or combined summons, are disputed or new facts are
alleged constituting a defence, the Court does
not attempt to decide
these issues or to determine whether or not there is a balance of
probabilities in favour of the one party
or the other. All that the
Court enquires into is: (a) whether the defendant had “fully”
disclosed the nature and grounds
of his defence and the material
facts upon which it is founded, and (b) whether on the facts so
disclosed the defendant appears
to have, as to either the whole or
part of the claim, a defence which is both bona fide and good in law.
If satisfied on these
matters the Court must refuse summary judgment
either wholly or in part, as the case may be. The word “fully”,
as used
in the context of the Rule (and its predecessors), has been
the cause of some judicial controversy in the past. It connotes, in
my view, that, while the defendant need not deal exhaustively with
the facts and the evidence relied upon to substantiate them,
he must
at least disclose his defence and the material facts upon which it is
based with sufficient particularity and completeness
to enable the
court to decide whether the affidavit discloses a bona fide defence.”
[29]
In
this case the Defendants rely solely on their technical defence of
excipiability. On the Defendants own version, they do
not deny
that they are indebted to the Plaintiff. If it is found that
the annexing of the aforementioned documents is not
a requirement for
the completion of Plaintiff’s cause of action, then their
defence falls away.
[30]
It
is perhaps also apposite to have regard to the remedy provided by
summary judgment proceedings as held by Navsa JA
in
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
2009 (5) SA 1
(SCA) :
“
[31]...The
summary judgment procedure was not intended to “shut a
defendant out from defending”, unless it was very
clear indeed
that he had no case in the action. It was intended to prevent sham
defences from defeating the rights of parties by
delay, and at the
same time causing great loss to plaintiffs who were endeavouring to
enforce their rights. [32] The rationale
for summary judgment
proceedings is impeccable. The procedure is not intended to deprive a
defendant with a triable issue or a
sustainable defence of her/his
day in court. After almost a century of successful applications in
our courts, summary judgment
proceedings can hardly continue to be
described as extraordinary.”
[31]
In
light of the authorities discussed above, it is evident that this
matter is distinguishable from those for the simple reason
that the
cause of action in those matters differ from that in the present
instance. The principle, in my view remains the same
and that is,
that the document upon which the cause of action is based, has to be
annexed to the summons and in the present case
it was. I agree
with Mr
Jonker
that Plaintiff’s cause of action is not found upon the letter
of demand, nor the relevant notice to remedy the breach. In
any
event, upon a closer inspection of the Defendant’s opposing
affidavit, it is evident that it does not dispute that any
monies are
owing and in fact, does not dispute the allegations contained in
paragraph 1.2 of the summons at all.
[32]
I
am therefore satisfied that the necessary elements constituting the
cause of action is present and the relevant documents in support
of
the cause of action, has been annexed to the summons. As a
consequence, the Defendants’ reliance of the Plaintiff’s
failure to annexure the stated notices, which is not the genesis of
the Plaintiff’s cause of action, must fail.
[33]
In
this matter the Defendants relied solely on a technical defence and
did not attempt to fulfil the requirements needed of them
as required
in
Maharaj
,
supra
to successfully oppose an application for summary judgment. Given
that they would have been perfectly entitled to adopt this strategy
in light of the
Jagger
decision, the risk of course attendant to this is that were they to
fail in convincing a court that the defence of excipiability
was good
in law, then that would have been the end of the enquiry and the
court would be left with nothing else to consider in
defence of the
merits. This is an election which they themselves made and one can
but infer that there is in fact no other defence
to the merits.
[34]
In
the circumstances, I am satisfied that the defences raised by the
Defendants’ must fail and that Plaintiff is entitled
to summary
judgment being granted against both First and Second Defendants.
[35]
In
the result the following Order is made:
1.
The
summary judgment application is granted against First and Second
Defendant with costs.
---------------------------------------
D KUSEVITSKY AJ